Kenneth
Dean Berman, a prisoner at the La Tuna Federal Correctional
Institution in Anthony, Texas, [1] seeks relief from his sentence
through a pleading he identifies as a
"Complaint."[2] Berman, proceeding pro se and
in forma pauperis, explains he pleaded guilty to
distributing child pornography, in violation of 18 U.S.C.
§ 2255A(a)(2)(B). Berman now asserts §
2255A(a)(2)(B) is unconstitutional.[3]The Court, after reviewing
the record and for reasons discussed below, will construe
Berman's "Complaint" as a petition for a writ
of habeas corpus under 28 U.S.C. § 2241. The Court, on
its own motion, will additionally dismiss Berman's
petition, pursuant to 28 U.S.C. § 2243.[4]

BACKGROUND
AND PROCEDURAL HISTORY

On
December 29, 2009, Berman knowingly distributed an image of
child pornography in interstate commerce via the internet.
Berman pleaded guilty, pursuant to a plea agreement, to one
count of distributing child pornography, in violation of 18
U.S.C. § 2255A(a)(2)(B), in the United States District
Court for the District of Arizona.[5] In the plea agreement,
Berman waived "any right to file an appeal, any
collateral attack, and any other writ or motion that
challenge[d] the conviction... including but not limited to
any appeals under 18 U.S.C. § 3742 and motions under 28
U.S.C. § 2241 and 2255."[6] Berman was sentenced to 90
months' imprisonment followed by a lifetime of supervised
release.[7] Berman did not file a direct appeal or
§ 2255 motion.

In his
"Complaint, " Berman asserts 18 U.S.C. §
2255A(a)(2)(B) is unconstitutional. He claims it (1) violates
his First Amendment free speech protections; (2) exceeds the
delegated enumerated powers granted Congress by the
Constitution; (3) usurps the police powers of the various
states, (4) could not apply to him because, as a resident of
the State of Arizona, he did not reside in a territory or
insular possession of the United States Government; and (5)
does not grant subject-matter jurisdiction to the federal
courts. He seeks a declaratory judgment, [8] "which would
result in [his] release from prison and all other collateral
sanctions and consequences resulting from said
conviction."[9]

APPLICABLE
LAW

Federal
courts may construe and re-characterize a pro se
prisoner's action "according to the essence of the
prisoner's claims."[10] "The relief sought by the
prisoner or the label he places upon the action is not the
governing factor."[11]

"Federal
law opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus... and a [civil
rights] complaint."[12] The "sole function" of a
habeas petition is relief from unconstitutional custody, and
"it cannot be used for any other
purpose."[13] Allegations complaining of the rules,
customs, and procedures affecting conditions of confinement
or treatment of prisoners are properly brought in a civil
rights action under 42 U.S.C. § 1983 or
Bivens.[14] Accordingly, "any challenge to the
fact or duration of a prisoner's confinement is properly
treated as a habeas corpus matter, whereas challenges to
conditions of confinement may proceed under Section
1983."[15]

A
motion to vacate under 28 U.S.C. § 2255
'"provides the primary means of collateral attack on
a federal sentence.'"[16] Relief under § 2255 is
warranted for errors that occurred at trial or
sentencing.[17] A § 2255 movant may only bring his
motion in the district of conviction and
sentence.[18]

By
contrast, a petition for writ of habeas corpus under 28
U.S.C. § 2241 "attacks the manner in which a
sentence is carried out or the prison authorities'
determination of its duration."[19] To prevail, a § 2241
petitioner must show that he is "in custody in violation
of the Constitution or laws or treaties of the United
States."[20] A § 2241 petitioner may make this
attack only in the district court with jurisdiction over his
custodian.[21]

Section
2255 contains a "savings clause" which acts as a
limited exception to these rules. It provides that a court
may entertain a § 2241 petition challenging a sentence
if it concludes that riling a § 2255 motion is
inadequate to challenge a prisoner's
detention.[22] A petitioner must satisfy a two-prong
test before he may invoke the "savings clause" to
address errors occurring at trial or sentencing in a petition
filed pursuant to § 2241:

[T]he savings clause of § 2255 applies to a claim (i)
that is based on a retroactively applicable Supreme Court
decision which establishes that the petitioner may have been
convicted of a nonexistent offense and (ii) that was
foreclosed by circuit law at the time when the claim should
have been raised in the petitioner's trial, appeal, or
first § 2255 motion.[23]

A
petitioner must prove both prongs to successfully invoke the
savings clause.[24] Thus, § 2241 is not a mere
substitute for § 2255, and a petitioner bears the burden
of showing the § 2255 remedy is inadequate or
ineffective.[25]

Finally,
"[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner."[26]

ANALYSIS

Berman
does not specify the statutory basis for his lawsuit in
bistro se "Complaint." He explains he
pleaded guilty to distributing child pornography, in
violation of 18 U.S.C. § 2255A(a)(2)(B), but now asserts
§ 2255 A(a)(2)(B) is unconstitutional.[27] He seeks a
declaratory judgment.[28] This, according to Berman,
"would result in [his] release from prison and all other
collateral sanctions and consequences resulting from said
conviction."[29]

Because
Berman challenges the fact of his imprisonment, the Court
construes his "Complaint" as a habeas corpus
matter.[30] Since Berman pleaded guilty in the
United States District Court for the District of Arizona, the
Court lacks the jurisdiction necessary to address a §
2255 motion.[31] The Court does have jurisdiction over
his custodian. The Court accordingly construes Berman's
pleading as a § 2241 petition.[32]

Berman
may proceed with an attack on the validity of his sentence
under § 2241 only if he can meet both prongs of the
stringent test for the § 2255(e) "savings
clause."[33]

The
first prong of the "savings clause" test is,
essentially, an actual innocence requirement. The "core
idea is that the petitioner may be have been imprisoned for
conduct which was not prohibited by law."[34] To meet the
first prong, a petitioner must rely on a retroactively
applicable Supreme Court decision which establishes that he
may have been convicted of a nonexistent
offense.[35]

Bergman
fails to identify a retroactively applicable Supreme Court
decision which supports his claim. Indeed, the Supreme Court
has long upheld the constitutionality of laws prohibiting the
distribution of child pornography. In New York v.
Ferber,458 U.S. 747 (1982), the Supreme Court rejected
a First Amendment challenge and upheld a prohibition on the
distribution and sale of child pornography because, it
explained, these acts were "intrinsically related"
to the sexual abuse of children in at least two
ways.[36] First, circulating child pornography
continued to harm the child who participated in the
abuse.[37] Second, trafficking in child pornography
provided an economic motive for producing more child
pornography and sexually exploiting children.[38] Under either
rationale, the distribution had a proximate link to the crime
of child sexual abuse. Thus, the Supreme Court concluded, the
State had an interest in closing the distribution network.

The
second prong of the "savings clause" test is a
foreclosure requirement. The petitioner must show his claims
were foreclosed by circuit law when he could have raised them
at trial, on appeal, or in a § 2255 motion. In this
case, Berman's claim was foreclosed when he could have
raised it in a direct appeal or § 2255 ...

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